By Dave Workman
Editor-in-Chief
As predicted by TGM, gun rights groups have filed a notice of appeal in their challenge of Oregon’s gun control Measure 114, which was upheld as constitutional in a lengthy ruling by U.S. District Court Judge Karin J. Immergut.
The restrictive gun control initiative bans the sale of so-called “large capacity magazines,” and requires firearms safety training before a citizen can obtain from law enforcement a permit-to-purchase a firearm. There is also a full background check.
The Second Amendment Foundation and Firearms Policy Coalition are only two of the gun rights groups challenging the measure, adopted narrowly last November by Oregon voters (50.6%-49.4%).
According to OregonLive.com, the appeal was expected. Judge Immergut’s ruling strained credulity, according to critics, including the Oregon Firearms Federation, a plaintiff in one of four federal lawsuits against the measure.
“The decision is 122 pages and we just received it so we have not had time to analyze it in depth,” OFF said in a statement published online. “What we have read defies belief. While not entirely unexpected, Immergut’s ruling is simple nonsense and sure to be overturned at the 9th circuit.”
OFF founder Kevin Starrett contacted TGM via email Tuesday, stating that “114 does not ban ‘large capacity’ magazines. It bans virtually ALL magazines as was pointed out in detail in the trial. It also bans most shotguns as their integral magazines can hold more than 10 mini shells.
“Also,” Starrett continued, “the ‘permit’ cannot be legally issued. Period. This was noted in the trial and dismissed by the state and Immergut. The measure REQUIRES FBI fingerprint review and the FBI has flat out said it will not do it. These points are being ignored by the cartel media.”
To support his contention, Starrett referred to language in Sections 4 and 11 of the gun control measure:
Section 4:
(e) The applicant must submit to fingerprinting and photographing by the permit agent. The permit agent shall fingerprint and photograph the applicant and shall conduct any investigation necessary to determine whether the applicant meets the qualifications described in paragraph (b) of this section. The permit agent shall request the department to conduct a criminal background check, including but not limited to a fingerprint identification, through the Federal Bureau of Investigation. The Federal Bureau of Investigation shall return the fingerprint cards used to conduct the criminal background check and may not keep any record of the fingerprints. Upon completion of the criminal background check and determination of whether the permit applicant is qualified or disqualified from purchasing or otherwise acquiring a firearm the department shall report the results, including the outcome of the fingerprint-based criminal background check, to the permit agent.
Section 11:
(d) “Large-capacity magazine” means a fixed or detachable magazine, belt, drum, feed strip, helical feeding device, or similar device, including any such device joined or coupled with another in any manner, or a kit with such parts, that has an overall capacity of, or that can be readily restored, changed, or converted to accept, more than 10 rounds of ammunition and allows a shooter to keep firing without having to pause to reload…
Among Judge Immergut’s conclusions upon which gun rights advocates focused was her contention that large capacity magazines “are not commonly used for self-defense and therefore are not protected by the Second Amendment.” That contention, alone, is being dismissed as “absurd” by the gun rights community.
SAF VOWS APPEAL IN MEASURE 114 CHALLENGE
During a week-long trial last month in Portland, attorneys for the various plaintiffs—the four lawsuits were consolidated—contended the new law gives local law enforcement too much discretion to determine someone’s suitability to own a firearm, Oregonlive.com noted.
But a question which could be raised about the Immergut decision is whether it complies with Supreme Court guidelines set down in last year’s Bruen ruling, which essentially did away with a “means-end scrutiny” test developed by Courts of Appeals in deciding Second Amendment cases. The explanation appears on Pages 9 and 10 of the Bruen ruling, authored by Associate Justice Clarence Thomas. Here is what Justice Thomas wrote:
“Since Heller and McDonald, the two-step test that Courts of Appeals have developed to assess Second Amendment claims proceeds as follows. At the first step, the government may justify its regulation by ‘establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood.” …The Courts of Appeals then ascertain the original scope of the right based on its historical meaning…If the government can prove that the regulated conduct falls beyond the Amendment’s original scope, ‘then the analysis can stop there; the regulated activity is categorically unprotected.’ …But if the historical evidence at this step is ‘inconclusive or suggests that the regulated activity is not categorically unprotected,’ the courts generally proceed to step two…
“At the second step, courts often analyze ‘how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.’ The Courts of Appeals generally maintain ‘that the core Second Amendment right is limited to self-defense in the home.’ …If a ‘core’ Second Amendment right is burdened, courts apply ‘strict scrutiny’ and ask whether the Government can prove that the law is ‘narrowly tailored to achieve a compelling governmental interest.’ …Otherwise, they apply intermediate scrutiny and consider whether the Government can show that the regulation is ‘substantially related to the achievement of an important governmental interest.’ … Both respondents and the United States largely agree with this consensus, arguing that intermediate scrutiny is appropriate when text and history are unclear in attempting to delineate the scope of the right…
“Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
On Pages 78-79 of her ruling, Judge Immergut notes, “Under Bruen, a ‘more nuanced’ analogical approach is necessary if a case implicates either ‘unprecedented societal concerns’ or ‘dramatic technological changes.’ … As this Court explains below, Defendants and Intervenor-Defendant have shown that this case implicates both. (a) Mass shootings using LCMs are an ‘unprecedented societal concern.’ First, this Court finds that based on the evidence presented at trial, Defendants and Intervenor-Defendant have shown that mass shootings using LCMs are an unprecedented societal concern rather than a general societal problem that has persisted since the eighteenth century.”
The fight is far from finished, and Second Amendment groups are expressing determination to take the case all the way to the Supreme Court if necessary.
